Complainant

Respondent

Parties

Gerard  Nowlan

Aircoach

Representatives

Vivian Cullen SIPTU-Trade Union

Peter D Gilfedder

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00068974-001

31/01/2025

On 12 November 2007, the Complainant commenced employment with the Respondent as a Professional Bus Driver. He worked 39 hours per week and was earning €20.25 per hour (€789.75 gross per week). On 12 December 2024, the Complainant was suspended with pay pending an investigation into an allegation that he was using his personal mobile phone whilst driving a bus in Dublin Airport.  On 3 January 2025, the Complainant was dismissed from employment following a disciplinary hearing. He asserts that the dismissal was unfair.

The Complainant stated in his written submissions that following an anonymous complaint made by a customer on 12 December 2024, the allegations against him were investigated. He said that CCTV was used by the Respondent during the course of the workplace investigation and alleged that this was contrary to any agreement that the Respondent had with the trade unions.

On 12 December 2024, Mr Martin Barlow, the Respondent’s on-Duty Coordinator, met with the Complainant to inform him that, following an allegation that he had been using his mobile phone while driving a bus in Dublin Airport, he would be suspended with pay pending an investigation. On 16 December 2024, Mr Martin Harrison, Staff Manager, wrote to the Complainant inviting him to attend an investigation meeting regarding the allegation.

On 18 December 2024, the Complainant attended the investigation meeting accompanied by his trade union representative. Mr Harrison, acting as Investigation Officer and supported by a note taker, opened the meeting by reading out the complaint, which stated that a passenger walking through the car park observed a “driver on his mobile phone while driving.” The Complainant stated that he did not remember using his phone at the time. During the meeting, Mr Harrison showed the bus CCTV footage, which he had reviewed. He observed that the Complainant at one point had only one hand on the steering wheel and at another had no hands on the steering wheel while using his mobile phone, noting that the bus was still in motion. Once the bus had stopped, the Complainant applied the handbrake and was in control of the vehicle. Mr Harrison also noted that a colleague boarded the bus when it stopped and appeared “in shock” in the CCTV footage. The Complainant responded, “I don’t know why I did it, I have been here for 18 years, I have never done that.” Mr Harrison recorded the relevant timestamps from the footage and stated that the Complainant had been on his phone for 22 seconds: “03:24:04 – Phone out driving vehicle, 03:26:17 – No hands on steering wheel, 03:26:28 – Handbrake applied.”

The Complainant recognised the seriousness of the incident and said, “I am guilty, I can’t argue, I don’t know why I picked up that phone call. I have been here for 18 years; I don’t have any reason why.” Following the meeting, Mr Harrison issued his investigation report in December 2024, concluding that the allegation was founded and recommending that the matter progress to the disciplinary stage.

On 3 January 2025, the Complainant attended the disciplinary hearing with his trade union representative. Mr Daniel Morgan, Service Delivery Manager, chaired the hearing as Disciplinary Officer, assisted by a note taker. Having reviewed all the evidence, including the CCTV footage, Mr Morgan asked whether there were any additional mitigating circumstances to be considered. The trade union representative referred to the Complainant’s personal circumstances, which Mr Morgan agreed to consider. He also noted the company’s strict policy on mobile phone usage and stated that the footage showed more than one instance of phone use. Later that same day, Mr Morgan issued the disciplinary outcome.

He concluded that, having considered all evidence, including CCTV footage demonstrating multiple instances of mobile phone use, the company’s mobile phone policy, and the Complainant’s 18 years of service, dismissal was the appropriate sanction due to the severity of the incident. He classified the conduct as gross misconduct and informed the Complainant of his right to appeal within five working days. The Complainant exercised this right, leading to an appeal hearing.

On 20 January 2025, the Complainant attended the appeal hearing with his trade union representative. The hearing was chaired by Mr Philip Ellis, Head of Operations, with a note taker present. The Complainant’s representative argued that there had been breaches of natural justice, disputed the authenticity of the original complaint, challenged the use of CCTV footage and the CCTV policy, denied that mobile phone use constituted gross misconduct, and argued that the sanction was disproportionate.

On 22 January 2025, Mr Ellis issued the appeal outcome, upholding the decision to dismiss. He concluded that the allegation amounted to gross misconduct and that using a mobile phone while operating a company vehicle in a public place constituted a breach of health and safety procedures.

THE LAW:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Section 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

The combined effect of the above sections of the Act require me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is helpfully set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. 

The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent also needs to show that fair process and procedures were applied when conducting the disciplinary process. In cases where a dismissal involves gross misconduct, the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrong doing.  The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

Having considered the submissions and evidence presented in this case, I note that although no evidence was presented to show that the Complainant had personally received a copy of the “Mobile Devices & Accessories Policy,” the Respondent nonetheless followed its own disciplinary procedures and complied with the principles set out in S.I. 146/2000 Code of Practice on Grievance and Disciplinary Procedures. The Complainant was represented throughout by a trade union representative, was given full opportunity to respond to the allegations, was provided with the Disciplinary Policy, and was afforded the opportunity to view the CCTV footage both at investigation and appeal stages. Each meeting and hearing was conducted impartially.

All relevant evidence was considered before any decision was reached. The Complainant was clearly informed of the seriousness of the allegations and of the potential for dismissal. He exercised his right of appeal, which was heard by a senior manager with no prior involvement in the matter although I was slightly concerned that the Disciplinary Officer made issued his decision to dismiss the Complainant on the same day that he conducted the disciplinary hearing which could indicate a predetermined outcome.

Regarding the use of CCTV, I do not accept the Complainant’s assertion that the absence of union agreement rendered its use unfair. The Respondent had a comprehensive CCTV policy permitting the use of footage for disciplinary investigation where misconduct is observed. Consistent with the reasoning in Peter Gleeson v Go-Ahead Ireland Bus Ltd (ADJ-00045088), I am satisfied that the Respondent met its obligations under the policy. The Complainant was given an opportunity to view the CCTV footage at both stages; his decision, and that of his representative, not to do so does not undermine the Respondent’s reliance on the evidence.

I also note, and consider significant, the evidence of the Appeals Officer, who explained that he had previously overturned the dismissal of another driver who had used his phone for only a few seconds, and that he regarded that case as materially different. In the instant case, the CCTV footage showed the Complainant holding and using his phone continuously for 22 seconds while the bus was in motion, including periods during which he had only one hand—and at one point no hands—on the steering wheel. This distinction demonstrates that the question of proportionality was actively considered and that the sanction imposed was not predetermined. That conclusion is reinforced by the fact that the outcome of the appeal was not issued until two days after the hearing, which reassures me that a full and reflective consideration took place and allays the concern I had, outlined above, with the relative speed in which the disciplinary outcome was originally delivered.

Even though no evidence was presented to show that the Complainant received the Mobile Devices & Accessories Policy, I am satisfied that he was well aware that he should not have had his phone in his hand while driving for 22 seconds, and that he should reasonably have been aware of the likely workplace consequences of using a mobile phone while driving. This is reinforced by the legal requirements under the Road Traffic Act 2006, which expressly prohibit holding a mobile phone while driving a mechanically propelled vehicle in a public place, and by S.I. 178/2014, which prohibits the reading or sending of text messages. These provisions are clear and widely known, and the Complainant was obliged to comply with them.

The Complainant stated in evidence that he had not taken the phone out to call or text anyone but merely because he felt it move in his pocket and wanted to turn the light off. I do not find this explanation credible. It was not disputed that he had the phone in his hand for 22 seconds. It would not reasonably take this length of time to turn off a phone light, and the CCTV footage, combined with the length of time involved, supports the Respondent’s finding that he was improperly handling the device while the bus was in motion.

I am also satisfied based on the evidence presented that the Respondent considered the Complainant’s long service and personal circumstances but concluded that dismissal was an appropriate and proportionate response given the seriousness of the misconduct, the safety-critical nature of the role, and the potential consequences of his actions.

Considering all of the foregoing, I find that the Respondent’s decision fell within the range of reasonable responses available to it.

For these reasons, I find that the Complainant was not unfairly dismissed.

I find that the Complainant was not unfairly dismissed.